Plaintiff
Barbara Whittaker, in her capacity as personal representative
of her deceased brother's estate, is proceeding with the
assistance of court-appointed counsel on a Second Amended
Complaint (Doc. 39; Complaint) under 42 U.S.C. § 1983.
In the Complaint, Plaintiff alleges Defendants violated the
decedent George Michael Jenkins' constitutional right to
be free from cruel and unusual punishment when he was an
inmate of the Florida Department of Corrections
(FDOC).[1] See Complaint at 9, 13. Before the Court
is Defendants Corbin, Humphrey, Rogers, and Tucker's
Motion for Summary Judgment (Doc. 106; Motion).[2] Plaintiff's
counsel responded to the Motion (Doc. 109; Motion Response).
As such, the Motion is ripe for this Court's review.

Before
addressing the merits of the Motion, the Court first
addresses Defendants' Objection to Plaintiff's
Reliance on Inadmissible Evidence (Doc. 115; Objection).
Defendants object to the Court's consideration of
Jenkins' affidavit (Doc. 1-1; Jenkins Aff.) and
Jenkins' prison grievances (Docs. 109-6, 109-7, 109-8),
each of which Plaintiff relies upon to defeat summary
judgment. Objection at 2-3. Citing Rule 56(c), Defendants
argue that because Jenkins is deceased, the facts contained
in his affidavit and grievances are not capable of being
“presented in a form that would be admissible in
evidence.” See Fed.R.Civ.P. 56(c)(2). Defendants
contend Jenkins' affidavit and grievances constitute
inadmissible hearsay and no hearsay exception applies.
Objection at 3-4.

In
response, Plaintiff maintains the facts contained in the
documents are capable of being reduced to admissible evidence
for trial (Doc. 116; Objection Response). Plaintiff asserts
the facts contained in Jenkins' affidavit are capable of
being reduced to admissible evidence under the “excited
utterance” exception. Objection Response at 3. As to
the grievance documents, Plaintiff asserts the
“records” exception to the hearsay rule applies.
Id.

A party
opposing summary judgment may rely upon affidavits or sworn
pleadings. Fed.R.Civ.P. 56(c)(4). However, such documents
must “set out facts that would be admissible in
evidence, and [the opponent must] show that the affiant or
declarant is competent to testify on the matters
stated.” Id. Because Jenkins is unavailable to
testify on the matters stated in his affidavit and
grievances, his out-of-court statements, to the extent
offered to “prove the truth of the matter asserted,
” constitute inadmissible hearsay. See Fed.R.Evid. 801
(defining “hearsay”).

In
opposing summary judgment, Plaintiff offers the facts in
Jenkins' affidavit to demonstrate he was sexually
assaulted by Defendants Corbin, Humphrey, and Rogers when
they engaged Jenkins in a spontaneous use of force on
November 11, 2011, at Suwannee Correctional Institution
(SCI). See Motion Response at 13. In his affidavit, which
Jenkins filed in support of his original, sworn complaint
(Doc. 1; Original Complaint), Jenkins avers the following:

I was removed from my prison infirmary cell, stripped of all
clothing and upon being placed back in my infirmary cell [I]
was manhandled and placed face down[.] [I] saw [Defendant]
Humphrey with what appeared to be a broken broomstick. I was
choked and had an object placed over my head, [I] was
sexually assaulted and the object that was shoved up my
rectum caused an immediate - pre mature [sic] movement of the
bowels.

Jenkins Aff. at 2; see also Original Complaint at 4.

To
overcome summary judgment, Plaintiff offers no evidence of
the alleged sexual assault other than the allegations
contained in Jenkins' affidavit and his sworn complaint.
See Motion Response. There were no witnesses to the use of
force incident other than corrections officers, including the
named Defendants, and neither party offers video
evidence.[3] As such, the affidavit is offered for the
truth of the matter asserted and therefore constitutes
inadmissible hearsay unless a hearsay exception applies under
the Federal Rules of Evidence.

Plaintiff
contends the excited utterance exception applies. See
Objection Response at 3 (citing Fed.R.Evid. 803(2)).
Plaintiff testified at her deposition that after Jenkins was
released from prison, she and Jenkins lived together for a
couple of weeks (Doc. 109-10; Plaintiff Dep.). Plaintiff
testified Jenkins was upset one day, and he referenced
someone having tried to kill him in prison:

[O]ne morning I heard [Jenkins] very upset, he was just
ranting and raving. . . . And he was saying - he was reading
- he had read something. And he just said, “These
mother fu***ers. These mother fu***ers they all - they tried
to kill me. These mother fu***ers in prison tried to kill
me.” And so I said to him, “Sometimes you have to
- in order to move on with your life, you have to forgive and
forget.” And he just really kind of exploded.
“What you mean forgive and forget?” He said,
“These mother fu***ers almost beat me to death and they
run all kind of shit up my ass and you want me to forgive and
forget?” And with that I just stopped and said,
“Okay. I have to go to work.” And I never asked
any questions.

So from that point on if I ever saw him get upset or
anything, saw him upset, I would just make myself scarce. I
would - I wouldn't be around because I didn't want to
hear it. I didn't ask for any details. I didn't want
to hear the details.

Under
the Rules of Evidence, an excited utterance is “[a]
statement relating to a startling event or condition, made
while the declarant was under the stress of excitement that
it caused.” Fed.R.Evid. 803(2). In determining whether
a declarant speaks while under the stress of the event, the
length of time between the event and the utterance is
relevant. See United States v. Belfast, 611 F.3d
783, 817 (11th Cir. 2010) (recognizing the excited utterance
need not be made contemporaneously to the startling event
but, in the totality of the circumstances, the declarant must
have been speaking while under the stress the event caused).
See also United States v. Carlisle, 173 Fed.Appx.
796, 801 (11th Cir. 2006) (“An out-of-court statement
made at least fifteen minutes after the event it describes is
not admissible [as a hearsay exception] unless the declarant
was still in a state of excitement resulting from the
event.”) (quoting United States v. Cain, 587
F.2d 678, 681 (5th Cir. 1979) (internal quotation marks
omitted; alteration in original)).

Here,
the alleged sexual assault occurred on November 11, 2011.
Complaint at 3. Taking as true the sexual assault occurred as
Jenkins describes it in his affidavit, the encounter
constitutes a “startling event.” However,
Jenkins' statement to Plaintiff was made at least three
years after the startling event occurred; according to the
FDOC website, Jenkins was released from prison on February
17, 2015.[5] Three years later, Jenkins cannot be said
to have been under the stress of the excitement of the
incident. Under these facts, Jenkins' statement to
Plaintiff, made after his release from FDOC custody and at
least three years after the “startling
event” does not constitute an “excited
utterance.” Accordingly, the Court finds the excited
utterance exception is inapplicable.[6]

Plaintiff
offers no other basis upon which the facts contained in
Jenkins' affidavit or his sworn complaint may be reduced
to admissible form. As such, the Court sustains
Defendants' Objection to the extent Jenkins'
affidavit and sworn complaint constitute inadmissible
hearsay, the facts of which Plaintiff fails to demonstrate
can “be presented in a form that would be admissible in
evidence.” See Fed.R.Civ.P. 56(c)(2). In ruling on
Defendants' Motion for Summary Judgment, therefore, the
Court will not consider the allegations in Jenkins'
affidavit or his sworn complaint. See McMillian v.
Johnson,88 F.3d 1573, 1584 (11th Cir. 1996) (holding
inadmissible hearsay may not be used to defeat summary
judgment if the hearsay evidence “will not be available
in admissible form at trial”).

With
respect to the grievance documents (Docs. 109-6, 109-7,
109-8), the Court finds Plaintiff relies upon those not to
prove the truth of the matter asserted but to demonstrate
Jenkins submitted grievances to the Warden of his
correctional facility. Accordingly, the Court overrules
Defendants' Objection to the extent they object to the
Court's consideration of the grievance documents
Plaintiff submits in opposition to the Motion for Summary
Judgment.[7]

II.
Summary Judgment Standard

Under
Rule 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The record to be
considered on a motion for summary judgment may include
“depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Rule 56(c)(1)(A). An issue is genuine when the evidence is
such that a reasonable jury could return a verdict in favor
of the nonmovant. Mize v. Jefferson City Bd. of
Educ.,93 F.3d 739, 742 (11th Cir. 1996) (quoting
Hairston v. Gainesville Sun Publ'g Co., 9 F.3d
913, 919 (11th Cir. 1993)). “[A] mere scintilla of
evidence in support of the non-moving party's position is
insufficient to defeat a motion for summary judgment.”
Kesinger, 381 F.3d at 1247.

The
party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined
at trial. See Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991). “When a moving party
has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.” Jeffery v. Sarasota White
Sox, Inc.,64 F.3d 590, 593-94 (11th Cir. 1995)
(internal citations and quotation marks omitted).

Substantive
law determines the materiality of facts, and “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248. In
determining whether summary judgment is appropriate, a court
“must view all evidence and make all reasonable
inferences in favor of the party opposing summary
judgment.” Haves v. City of Miami, 52 F.3d
918, 921 (11th Cir. 1995) (citing Dibrell Bros.
Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d
1571, 1578 (11th Cir. 1994)).

III.
Facts & Claims for Relief

Jenkins'
claims arise out of a documented spontaneous use of force
incident that occurred at SCI on November 11, 2011, involving
Defendants Corbin, Humphrey, and Rogers. On the date of the
incident, Jenkins was housed in the prison infirmary/medical
isolation area. Complaint at 3; Motion Ex. B at 4. He was on
close management, self-harm observation status and was
documented as a “mental health grade level 2.”
Motion Ex. C at 3-4.[8]

The use
of force incident under review occurred at approximately 9:15
a.m. Id. at 4, 7. Earlier that morning, at about
7:10 a.m., according to a nurse's entry in Jenkins'
“Chronological Record of Health Care” (medical
chart) (Doc. 110-2; Motion Response Ex. B), Jenkins was angry
and banging on his cell windows. After observing Jenkins at
his cell, Nurse Hancock wrote the following entry in the
medical chart: “[Inmate] has hand wrapped up and has
been banging on window off and on for about 50 min[utes]. [He
h]as been acting out [for two] evenings and was started on a
[management] meal this [morning].[9] Affect angry.” Motion
Response Ex. B at 2.

Nurse
Bisque, who was on duty at the time of the use of force
incident, made an entry in the medical chart at 2:10 p.m. on
November 11, 2011 (after the incident). Id. at 3.
She noted having been informed that, in the morning, Jenkins
was agitated and banging on his cell window. Nurse Bisque
wrote the security officer counseled Jenkins “cell
front, ” and Jenkins threatened the officer and yelled
obscenities. Id. After the officer in charge
arrived, [10]Jenkins was brought to the nurses'
station while Defendant Corbin was searching his cell
pursuant to a 72-hour property restriction order imposed
because of Jenkins' recent disruptive and threatening
behavior and his property was in disarray. Id.;
Motion Ex. B at 4. When Jenkins was at the nurses'
station, he continued his threatening behavior. Shift
supervisor Captain Stout was present, along with Lieutenant
Keith. Both Stout and Keith heard Jenkins state, “If
you put me on strip I am going to kill the first staff member
that I get my hands on.” Ex. E at 3, 16.[11]

The use
of force incident occurred after the cell search was complete
and Defendant Corbin was attempting to return Jenkins, who
was in a wheelchair, to his cell. Motion Ex. B at 4.
Defendants Rogers and Humphrey were present, as well as
Lieutenant Keith, who ordered Jenkins to submit to having his
shirt removed for a strip search. Jenkins refused. In his use
of force report, Defendant Corbin explains the following:

I completed my search and removal of property from
[Jenkins' cell], and was attempting to place inmate
Jenkins back into his cell when he told[] Sergeant James
Rogers, Officer Michael Humphrey and myself that we were
going to have to “run it to get his clothes and he
wasn't going on strip.” At that time, Lieutenant
Jason Keith, who was present gave several verbal orders for
inmate Jenkins to submit to having his shirt removed . . . .
Inmate Jenkins stated “No it ain't happening”
and inmate Jenkins spun his wheel chair [sic] around [and]
stood up and lunged at me in an aggressive and agitated
manner stating “I'm gonna f*** you up!” At
this time, I side stepped and placed both hands on the back
of the inmate grasping his shirt and directed the inmate to
the floor in the prone position. Sergeant Rogers and Officer
Humphrey were present and assisted in controlling Inmate
Jenkins' extremities. I then repositioned inmate
Jenkins['] upper torso inside the cell door, by lifting
his upper torso from the floor and turning him inside the
cell, his lower ...

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